W.C. No. 4-545-460.Industrial Claim Appeals Office.
August 4, 2003.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Mattoon (ALJ) which awarded temporary total disability benefits following the claimant’s discharge from employment. The respondents contend the ALJ erred in finding the claimant was not “responsible” for the termination of employment under § 8-42-105(4), C.R.S. 2002. We disagree, and therefore, affirm.
On May 8, 2002, the claimant filled out a written application for employment and was hired by the respondent-employer. On June 7, 2002, the claimant suffered a compensable injury, which temporarily precluded him from performing his regular employment duties. No modified employment was provided and the employer terminated the claimant’s employment effective June 14, 2002 for making false statements on the application for employment.
To receive temporary disability benefits, a claimant must establish a causal connection between the industrial disability and the loss of wages. Section 8-42-103(1), C.R.S. 2002. However, § 8-42-105(4) and identical language in § 8-42-103(1)(g), C.R.S. 2002, provides that “where it is determined that a temporarily disabled employee is responsible for termination of employment, the resulting wage loss shall not be attributable to the on-the-job injury.” A claimant is “responsible” if the claimant acted volitionally or exercised some control over the separation in light of the totality of the circumstances. Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002); Padilla v. Equipment Corp. 902 P.2d 414 (Colo.App. 1994).
The application for employment contained the following question:
“Have you ever been convicted of or pled guilty to or nolo contendere to a felony or misdemeanor (not including minor traffic violations) except for a case that has been expunged, sealed or dismissed.”
The application also stated that, if employed, the applicant may be subject to disciplinary action up to and including termination for falsified statements on the application.
The claimant answered “yes,” to the written question concerning his criminal record and wrote that he was convicted of public intoxication. However, at the hearing on the claim for temporary disability benefits, the claimant admitted he had also been convicted of reckless driving, harassment, and theft. The claimant stated that he received “deferred sentences” for the theft and harassment, which he successfully completed.
The ALJ found the claimant and the employer’s witness were unsure what the employer considered to be a “minor” traffic violation and whether the offense of reckless driving qualified as a “minor” traffic offense. In any case, the ALJ found the night supervisor who assisted the claimant in completing the application told the claimant it did not have to be disclosed. Therefore, the ALJ determined the respondents failed to prove the claimant was obligated to disclose the conviction on the application. The ALJ also found the respondents failed to prove the claimant had been convicted of leaving the scene of an accident and DUI. Further, the ALJ found the claimant was not required to disclose the deferred sentences imposed on the charges of theft and harassment because the charges were “eventually dismissed for successful completion of the deferral,” which was prior to the date of the claimant’s application for employment.
Based on these findings the ALJ determined the respondents failed to prove the claimant volitionally withheld any required information on the employment application, and was therefore not responsible for the termination of employment. Consequently, the ALJ the claimant was not barred from receiving temporary total disability benefits for the period June 14, 2002 to September 12, 2002, the date the claimant was placed at maximum medical improvement.
On review the respondents contend the record fails to support the ALJ’s finding that the convictions for theft and harassment were dismissed prior to May 8, 2002. Therefore, the respondents argue the ALJ erroneously determined the claimant was not responsible for the termination of employment. We disagree.
Section 8-42-105(4) is an affirmative defense to the respondents’ liability for temporary disability benefits. See Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988). Consequently, it was the respondents’ burden to prove the claimant acted volitionally in causing the circumstances which led to the discharge. We are bound by the ALJ’s factual determinations if supported by substantial evidence and plausible inferences drawn from the record. This standard requires us to review the evidence in the light most favorable to the prevailing party, and accept the ALJ’s resolution of conflicts in the evidence, as well as the plausible inferences which she drew from the evidence. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951) Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). The mere fact that an employer discharged the claimant in accordance with the employer’s policy does not establish that the claimant acted volitionally or exercised control over the circumstances of the termination. See Gonzales v. Industrial Commission, 740 P.2d 999
(Colo. 1987); Pace v. Commercial Design Engineering, W.C. No. 4-451-277
(May 15, 2001).
The claimant admitted he had been convicted of theft and harassment. (Tr. p. 16). However, in explanation for why he did not list these convictions on the application for employment, the claimant stated that he successfully completed the deferred sentences for the theft and harassment. (Tr. p. 22). Considering the context of the claimant’s testimony, we conclude the ALJ reasonably interpreted the claimant’s testimony as an assertion that the deferred sentences were completed prior to the date the claimant applied for employment with the respondent employer. See Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524
(Colo.App. 1996) (ALJ findings may be inferences from circumstantial evidence).
Furthermore, under § 16-7-403(1), C.R.S. 2002, a deferred sentence refers to circumstances where the defendant enters a plea of guilty which is accepted by the court, and the district attorney agrees to continue the case for a period of years for purposes of entering a judgement and sentence. Subsection 16-7-403(2) provides that upon full compliance with the conditions of the deferred sentence, “the plea of guilty previously entered shall be withdrawn and the charge upon which the judgment and sentence of the court was deferred shall be dismissed with prejudice.” Under these circumstances, the claimant’s testimony that he successfully completed the deferred sentence supports the ALJ’s inference that the charges of theft and harassment had been dismissed prior to the date the claimant filled out the employment application.
Moreover, the ALJ’s remaining findings support the conclusion the claimant was not responsible for the termination of employment. See Padilla v. Equipment Corp., supra. Consequently, the ALJ did not err in awarding temporary disability benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 20, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed August 4, 2003 to the following parties:
Joseph Pelletier, 4133 Morely Circle, Colorado Springs, CO 80916
Lowe’s Home Improvement Warehouse, 2945 New Center Point, Colorado Springs, CO 80922
American Protection Insurance Company, c/o Tanya Avedovech, Specialty Risk Services, P. O. Box 221700, Denver, CO 80222
James A. May, Esq., P. O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
John M. Lebsack, Esq., 950 17th St., #2100, Denver, CO 80202 (For Respondents)
BY: A. Hurtado